Date Issued: September 17, 2021

File: ST-2020-008749

Type: Strata

Civil Resolution Tribunal

Indexed as: Saigeon v. The Owners, Strata Plan KAS1997, 2021 BCCRT 1010

Between:

RODNEY SAIGEON and LAUREL SAIGEON

ApplicantS

And:

The Owners, Strata Plan KAS1997

Respondent

REASONS FOR DECISION
Tribunal Member:	Leah Volkers

INTRODUCTION

1.      This dispute is about strata corporation governance. The applicants, Rodney Saigeon and Laurel Saigeon, own a strata lot in the respondent strata corporation, The Owners, Strata Plan KAS 1997 (strata). The applicants say that the strata’s governance has not complied with the requirements of its bylaws or the Strata Property Act (SPA). The applicants ask for the following orders:

a.    The strata include all council members in strata council meetings and strata business,

b.    The strata properly record all votes and decisions in the strata council meeting minutes,

c.    The CRT clarify the April 26, 2003 meeting minutes are valid for assigning parking stalls and order the strata immediately enforce the parking bylaw,

d.    The strata immediately start preparing and retaining records required by the SPA,

e.    The strata stop harassing the applicants and apologize for doing so.

2.      The strata denies the applicants’ claims.

3.      The applicants are represented by Mr. Saigeon. The strata is represented by a strata council member.

JURISDICTION AND PROCEDURE

4.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over strata property claims under section 121 of the Civil Resolution Tribunal Act (CRTA). The CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. The CRT must act fairly and follow the law. It must also recognize any relationships between dispute parties that will likely continue after the CRT’s process has ended.

5.      The CRT has discretion to decide the format of the hearing, including in writing, by telephone, videoconferencing, or a combination of these. I am satisfied an oral hearing is not required as I can fairly decide the dispute based on the evidence and submissions provided.

6.      The CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in court. The CRT may also ask the parties and witnesses questions and inform itself in any way it considers appropriate.

7.      Under section 123 of the CRTA and the CRT rules, in resolving this dispute the CRT may order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the CRT considers appropriate.

PRELIMINARY ISSUES

Previous CRT disputes

8.      The applicants’ Dispute Notice and submissions refer to two previous CRT decisions, ST-2017-007078 (Saigeon 1) and ST-2019-008512 (Saigeon 2) with the same parties, and some overlapping issues.

Bank statements

9.      Saigeon 2 included an order that required the strata to provide the applicants with full copies of various bank statements within 2 weeks. In their Dispute Notice for this dispute, the applicants say the strata has not done so. I do not have jurisdiction to enforce a previous CRT Order. Under section 57 of the CRTA, the above order can only be enforced in the BC Supreme Court. So, I refuse to resolve this claim.

Meeting Minutes

10.   In this dispute, the applicants say that the strata has not properly recorded its annual general meeting (AGM) minutes. In particular, the applicants say the strata did not properly record minutes for the 2018 AGM, including voting results. The applicants ask for an order that the strata properly record in the minutes all votes and “any decisions pertaining to fines, warning letters, legal notices, etc.” The applicants do not ask for any other remedies for the above claim.

11.   The legal principal of res judicata, meaning already decided, applies here. The conduct of the 2018 AGM, including recording votes and documenting the meeting, was decided by a CRT member in Saigeon 2. The CRT member ordered the strata to hold a new AGM, and to conduct votes and document the meeting as required by the SPA, which the strata had agreed to in any event. I find the applicants are estopped, or barred, from re-litigating this same issue, because it has already been decided in Saigeon 2 (see Tuokko v. Skulstad, 2016 BCSC 2200).So, I dismiss the applicants’ claim about the 2018 AGM.

Strata council meetings and business

12.   In this dispute, the applicants also say the strata has not included Mrs. Saigeon, who is a strata council member, in all strata council business. The applicants say that the strata does not inform Mrs. Saigeon of events and developments and does not provide her with proper notice of strata council meetings. The applicants ask for an order that the strata inform and include all council members in council meetings and business. The applicants say that an order from the CRT will instruct the strata council how the council must conduct both meeting notifications and council meetings.

13.   As with the applicants claim about the 2018 AGM, I find the legal principal of res judicata applies to this claim. The issue of the strata council not informing the applicants of events and developments and not providing them with proper notice of council meetings was raised in Saigeon 2. In Saigeon 2, the applicants asked the CRT to order the strata council to follow the SPA and bylaws for calling and conducting council meetings. The CRT member found that the strata’s informal approach to calling strata council meetings did not amount to attempts to prevent the applicants from participating on strata council and dismissed the claim. I find the applicants are barred from re-litigating the same issue, because it has already been decided in Saigeon 2. So, I dismiss the applicants’ claim about the conduct of strata council meetings and business.

Harassment

14.   The applicants’ Dispute Notice contains allegations of harassment by the strata council. The applicants request an order that strata council immediately stop all forms of harassment against the applicants and provide a written apology. For the following reasons, I find the applicants’ claims of harassment are outside the CRT’s strata property claim jurisdiction.

15.   First, section 121(1) of the CRTA says CRT has jurisdiction over a claim, in respect of the SPA, concerning one or more listed areas including the interpretation or application of the SPA, or a regulation, bylaw or rule under the SPA, common property (CP), use or enjoyment of a strata lot, money owing, and actions or decisions by a strata against an owner. Absent a bylaw about harassment, as is the case here, I find the applicants’ harassment claims do not fall within CRTA section 121(1). I therefore find that harassment claims do not fall within the CRT’s strata property jurisdiction.

16.   Next, the applicants did not specify the strata council members they allege harassed them, and did not name any strata members as respondents in this dispute. So, I cannot make orders against them because they have not had the opportunity to respond to the applicants’ allegations.

17.   Further, section 31 sets out the standard that strata council members must meet in performing their duties. It says that each council member must act honestly and in good faith, with a view to the best interests of the strata, and exercise the care, diligence, and skill of a reasonably prudent person in comparable circumstances. I find a strata council member’s standard of care would capture claims of harassment. So, I find the applicants’ harassment claim is a claim under SPA section 31.

18.   However, in The Owners, Strata Plan LMS 3259 v. Sze Hang Holding Inc., 2016 BCSC 32 at paragraph 267, the B.C. Supreme Court (BCSC) found that the duties of strata council members under section 31 are owed to the strata corporation, and not to individual strata lot owners. More recently in Rochette v. Bradburn, 2021 BCSC 1752 at paragraphs 82, the BCSC confirmed that the SPA does not allow another strata owner to sue for violations of section 31. This means that a strata lot owner cannot bring a claim against a strata corporation for duties owed by its strata council members under section 31.

19.   The court decisions in Sze Hang and Rochette are binding precedent. So, following Sze Hang and Rochette, I find the CRT has no jurisdiction to decide the applicants’ section 31 claim, as set out above.

20.   Under section 10 of the CRTA, the CRT must refuse to resolve a claim that it considers to be outside the CRT’s jurisdiction. A dispute that involves some issues that are outside the CRT’s jurisdiction may be amended to remove those issues.

21.   For all these reasons, to the extent the applicants allege they were harassed by strata council members, I refuse to resolve the applicants’ harassment claim. I also note that even if I did have jurisdiction to address the harassment claim, I find some, if not all, of the applicants’ harassment allegations were raised in their previous Dispute Notice for Saigeon 2.

22.   One of the applicants’ requested remedies is for a written apology from the strata acknowledging its actions towards the applicants as harassment. I have already found that the CRT does not have jurisdiction over the applicants’ harassment claim, so I find I do not have jurisdiction to order a remedy for the alleged harassment. However, even if the CRT had jurisdiction over the harassment claim, I would still not order the strata to apologize. I see no purpose in ordering the strata to apologize to the applicants because an ordered or forced apology is not productive or helpful.

ISSUES

23.   The remaining issues in this dispute are:

a.    Whether the strata has designated parking stalls, and if so, whether the strata has properly enforced its parking bylaw, and

b.    Whether the strata has properly retained records as required by the SPA.

EVIDENCE AND ANALYSIS

24.   The only evidence submitted by the strata was one short statement prepared by a strata council member. I have read all the parties’ submissions and evidence, but only reference what is necessary to provide context for my decision.

25.   The strata was created in 1998. The strata’s bylaws were filed in the LTO on April 27, 2012, and no amendments to the bylaws have since been filed.

26.   The history between the parties was set out in Saigeon 2 and so I do not repeat it here.

Parking stall designations and parking bylaw

27.   The applicants say that the strata council assigned a specific parking stall to each strata lot and designated a visitor parking stall at an April 26, 2003 strata council meeting. The applicants say other strata lot owners have been using the visitor parking stall and the strata has not enforced the visitor stall parking bylaw, despite complaints.

28.   The strata’s only bylaw about parking is bylaw 3(7), which says:

(7) An owner, tenant, occupant of a Strata Lot or the guest of such a person must use only the parking space assigned to his or her Strata Lot, save and except for private arrangements with other owners or tenants for the use of parking spaces assigned to such other owners or tenants.

(a) The visitor’s parking space is reserved for the use of visitors only.

29.   The applicants ask for the CRT to “clarify the minutes for April 26, 2003 strata meeting are valid for assigning the parking stalls” and seek an order that the strata council immediately enforce the strata’s parking bylaw.

30.   I find the strata has not properly designated any parking stalls. Without designated parking stalls, I find that it is not possible for the strata to enforce bylaw 3(7). So, I decline to order the strata to enforce the parking bylaw. My reasons follow.

Parking stall designations

31.   The evidence before me indicates that the strata has been functioning for a number of years as though there are designated parking stalls for each of the four strata lots within the strata and one designated visitor parking stall. As noted, the applicants ask that the CRT clarify that the April 26, 2003 meeting minutes are valid for assigning parking stalls.

32.   The April 26, 2003 meeting minutes say only that the parking lot lines were repainted, and the stall numbers were changed to read “V   #1   #2   #3   #4” (reproduced as written). There is no other information in the April 26, 2003 minutes about parking. However, I infer from the fact that this is a 4-unit strata building that each strata lot was meant to be assigned one parking stall, with one visitors’ stall assigned for the entire strata. Despite this, I find that the minutes do not clearly show whether particular stalls were assigned to particular strata lots. While the strata council may very well have intended to designate parking stalls at its April 26, 2003 meeting, I find the minutes do not record any decision about this. Even if the strata council did record parking designations in the minutes, I find the designation would not be valid and enforceable.

33.   The area currently used for parking falls within the strata’s CP. There are 2 ways the strata could have assigned parking stalls within the CP: permanently with a limited common property (LCP) designation under SPA section 73 or annually under SPA section 76. The strata plan does not show a designated parking area within the strata’s CP, and does not show any LCP designated to parking. Individual parking stalls are not shown. There is no evidence that the parking stalls were designated as LCP as required by SPA section 73, either initially by the developer, by amendment to the strata plan, or by a resolution passed at an annual or special general meeting. There is also no evidence that parking stalls were designated in accordance with section 76. I also note that SPA section 35 requires the strata to keep a list of parking stall numbers, if any. However, no list of parking stall numbers is in evidence.

34.   Emails in evidence from the strata to the applicants from fall 2020 indicate that the strata was aware that the parking stalls had not been properly designated, and suggest taking steps to designate the parking stalls. However, there is no evidence this has been done. So, I find that the evidence before me does not show that the strata designated parking stalls to specific strata lots, and the strata’s CP remains available for use by any of the strata lot owners.

35.   In any event, I find that the applicants’ main issue is not about the assignment of parking stalls amongst strata lot owners. Rather, I find the applicants main issue is their allegation that another strata lot owner has been parking in the visitor parking stall, contrary to the bylaw 3(7)(a). The applicants say the strata has not enforced the parking bylaw, despite their complaints. Given my finding that the strata has not designated parking stalls, I find that it is not possible for any owner to contravene the parking bylaw by parking in any of the stalls located within the strata’s CP. I say this because without designated parking stalls, there is no visitor parking stall. While the strata says that a visitor parking stall was agreed to years ago, there is no evidence a visitor parking rule was ever ratified at an AGM or special general meeting.

36.   So, I find the strata has not failed to enforce its parking bylaw, as the applicants allege. I decline to make any order requiring the strata to enforce its parking bylaw.

Records

37.   The applicants say that the strata has not kept records as required by SPA section 35. SPA section 35 sets out a list of the records that the strata must prepare and retain. SPA section 36 says that on request, the strata must make the records listed in section 35 available for inspection and provide copies to an owner, tenant, or person authorized by an owner or tenant within two weeks. The applicants also say that the strata has not brought copies of the SPA, the regulations, the strata plan, or the bylaws to strata meetings.

38.   The applicants’ only requested remedy is for the strata to “assemble” all records, communications and other documents as required by the SPA. The applicants’ Dispute Notice did not include a request that the records be provided to them under SPA section 36.

39.   In its Dispute Response, the strata agreed to prepare and retain the records required under SPA section 35. I see no need to order the strata to assemble records they are already required to prepare and retain under the SPA. So, I dismiss the applicants claim about records.

CRT FEES AND EXPENSES

40.   Under section 49 of the CRTA, and the CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. I therefore order the applicants to reimburse the strata for CRT fees of $25. The strata did not claim any dispute-related expenses and so I award none.

41.   The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against the applicants.

ORDERS

42.   Within 30 days of the date of this decision, I order the applicants to pay the strata $25 in CRT fees.

43.   The applicants are entitled to post-judgment interest as applicable.

44.   I dismiss the applicants’ claims.

45.   Under section 57 of the CRTA, a validated copy of the CRT’s order can be enforced through the British Columbia Supreme Court. Under section 58 of the CRTA, the order can be enforced through the British Columbia Provincial Court if it is an order for financial compensation or return of personal property under $35,000. Once filed, a CRT order has the same force and effect as an order of the court that it is filed in.